Tuesday, January 27, 2009

The REAL Lessons of "Soft" Judicial Review

American constitutional scholars who are troubled by the power of our Supreme Court---those who fret over what Alexander Bickel famously called the "countermajoritarian difficulty"---sometimes point to the alternative systems that have been adopted relatively recently by some countries with which we share a common law tradition: in particular, Canada, the U.K., and New Zealand. Using somewhat different mechanisms, in each of these countries, judges have the power to find laws invalid or, what amounts to nearly the same thing, to construe them contrary to their text to find them valid, but legislatures are then empowered to override the judges' decisions. For purposes of simplicity and because it is by now the best established of these "soft" forms of judicial review, here I'll focus primarily on Canada's so-called "Notwithstanding Clause"(Section 33) of the Charter of Rights and Freedoms. It provides:

(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

Section 33 then goes on to specify that a "notwithstanding" declaration expires after 5 years although it may be re-enacted.

Last week, I attended a talk by Canadian-born Australian law professor (currently on a visiting gig back in Canada) James Allan. Allan is, like many antipodean law professors, a judicial review skeptic, for the standard reason---he thinks it difficult to justify in a democratic society. The theme of his talk was that Americans in the Bickelian mold are mistaken if they think that "soft" judicial review is, in operation, less countermajoritarian than American-style "hard" judicial review. He noted that in the UK, New Zealand and Canada (with the exception of Quebec), legislative override mechanisms simply are not used. In practice, Allan argued, "soft" judicial review is no different from US-style judicial supremacy.

I don't quarrel with Professor Allan's factual account but I think he draws the wrong lesson. He credits an argument made by Jeremy Waldron (and others) that attributes some of the un-useability of override provisions to their wording. Note, Waldron and Allan say, that the Notwithstanding Clause does not empower Canadian parliaments to declare "we think the Supreme Court misinterpreted the charter and hereby substitute our interpretation." Rather, it requires the overriding parliament to declare that it is violating the Charter itself. Likewise, Allan et al say, under the UK Human Rights Act, although a Law Lords declaration of incompatibility (between a statute and the European Convention on Human Rights) does not invalidate the law, Parliament is given the option of removing the incompatibility, rather than of substituting its judgment on what all could agree are difficult and divisive questions. Thus, the argument goes, the provisions authorizing soft judicial review load the dice in favor of the judicial interpretation: it is treated as the "correct" or "real" meaning of the relevant fundamental rights, and parliament is denominated a violator of such rights. This framing, Allan, Waldron and others say, makes the legislative override unuseable.

I am not persuaded. Note that in the U.S. we have roughly the same convention with respect to legislation. If the Supreme Court interprets a statute to mean X, and Congress thinks it should have been interpreted to mean Y, then when Congress re-writes and re-enacts the statute to say Y, the Courts treat this as a change in the meaning of the statute, rather than as a substitution of one reading for another. But no one is fooled by this convention and it does not stop members of Congress from saying on the floor, to the press, or even in a "findings" section of the amending statute itself, words to the following effect: "We think the Supreme Court got it wrong when it held the original statute meant X, and we are correcting that error." Likewise, there is nothing in Canadian or UK law that would prevent MPs from making analogous statements about judicial interpretations of the Charter or the ECHR.

When I raised the foregoing objection in a question to Professor Allan last week, he said that one hears such talk in the UK but not in Canada. That, to me, suggests that the difference is mostly cultural: Canucks (except when playing hockey) are simply nicer and less argumentative than Brits (although one could, I suppose, argue that the stronger wording of the Canadian Notwithstanding Clause plays some role.)

More broadly, I think the experience under regimes of soft judicial review serves to answer the countermajoritarian difficulty even in regimes of hard judicial review. That experience shows that given the formal option of legislative override, citizens and subjects in countries quite similar to our own---including two (the UK and New Zealand) with no entrenched written Constitution---accept countermajoritarian judicial review as legitimate. This is pretty clear majoritarian support for the countermajoritarian practice of judicial review.

To be clear, that fact does not undermine the normative case against (hard or soft) judicial review. Allan, Waldron and others can still say that in accepting the legitimacy of de facto judicial supremacy, citizens and subjects of these common law countries are making a mistake; they are accepting a less than fully democratic regime. This would be a little like criticizing subjects of a benevolent (or even not-so-benevolent) dictator for accepting the dictator's edicts as legitimate. That's a perfectly sensible move, but note that it is hard to describe it as a move that questions the legitimacy rather than the wisdom of the system being criticized. And for the most part, critics of judicial review have tended to couch their arguments in terms of legitimacy.

17 comments:

Anonymous
said...

Those who complain that judicial review under our Constitution is "counter-majoritarian" have not thought their position through. If they want a "majoritarian" system, they have to ditch the Constitution, the ultimate "counter-majoritarian" feature in our law. I once calculated that if the legislatures of the 13 states with the smallest populations rejected a proposed amendment by a majority plus one in each house, and if half + one of the constituants of each legislator voting against the amendment were opposed to it, and everyone else in the country were in favor, 6 percent of the people could stop the amendment. Of course, the case for temporing the majority's sometimes fleeting will is well laid out in the Federalist and in the debates on the Constitution.

Here is the standard response of people who favor written constitutions perhaps coupled with judicial enforcement of crystal-clear provisions (like 2 Senators per State) but not judicial interpretation of open-ended provisions: Constitutionalism is counter-majoritarian because it is super-majoritarian, i.e., because it takes a super-majority to enact constitutional provisions; by contrast, judicial review of open-ended language is minoritarian, i.e., favoring the views of 5-9 Justices over the (more) majoritarian electoral process. I think this view is itself problematic (because of, among other things, the dead hand problem), but it's not quite fair to judicial review skeptics to accuse them of failing to have thought through their position.

OK, let's take those open-ended provisions like "equal protection", or, my favorite, the 9th Amendment ("other", unspecified, rights are retained by the people--one can hardly get more vague than that, at least so far as the text goes.) What do the anti-counter-majoritarians propose? Let the normal legislative process decide, or, since this is in the Constitution, change it by Constitutional amendment? If the latter, we're back to counter-majoritarianism. If the former, why do we have a Constitution? Perhaps anti-counter-majoritarians have addressed these questions, but if so, their answers should come up whenever the topic of counter-majoritarianism comes up.

I guess Mike describing the anti-counter-majoritarian position as decision-making by at least 6% is OK, but not by 5 individuals. In that case, do the antis think that every question of Constitutional interpretation should be decided by amendment? If so, they need to get into the real world. The very reason for courts is that the legislature is incapable of handling the volume of questions that arise under a typical law or Constitutional provision.

I'm basically on Bob's side of this argument, and would be happy for a judicial review skeptic to make the point for himself or herself, but failing that, what he or she would likely say is that written constitutional rights provisions do indeed play a valuable role without judicial review: they focus deliberation about rights in the legislature. This point is often coupled with the claim that such deliberation is more serious when legislators do not have the ability to fall back on judicial review but must take full responsibility for their actions.

I confess to being more than a bit confused by your description of the judicial power in New Zealand, where I lived and taught law (including Law & Society, no less) for three years. I know of no mechanism, used or unused, that allows a New Zealand judge to invalidate an act of Parliament or knowingly and deliberately construe an act contrary to its text. A judge can, of course, express her belief that a particular act violates the New Zealand Bill of Rights Act, but doing neither invalidates the act nor in any way obligated Parliament to amend it. Have I missed something?

Okay, first, this is not my description but Professor Allan's. He acknowledges that as in England, a NZ declaration of incompatibility does not bind parliament. However, he says (and he lived in and taught in NZ for many years) that in practice the NZ parliament accepts the court's judgments as de facto authoritative.